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					Deferred Action for
Childhood Arrivals


              Last Updated
              August 15, 2012
2
•   What is “practicing law” and “legal
    advice?”
•   What is DHS’s deferred action policy?
•   Eligibility criteria
•   How to apply for deferred action
•   Policy concerns




                                            3
Warning
 This presentation contains general
  information and is not legal advice.
 Every case is different.
 Do NOT take advice from a notary
  public or an immigration consultant.
 Contact ONLY a qualified immigration
  lawyer or an accredited representative for
  legal advice on your case.

                                           4
What is “legal advice?”
 Giving  advice about any laws (local,
  state, federal law, international)
 Advising you which forms to file with
  CIS
 Advising you on what to do in your
  case



                                          5
What is “practicing law?”
 Performing services in a court
 Negotiating and settling claims on behalf
  of others
 Preparing contracts and other documents
  that secure legal rights, whether the
  matter is pending in court or not.
    ◦ Non attorneys can do this under the
      supervision of an attorney.


                                              6
Who can give practice law and give
legal advice?
 Only lawyers licensed to practice in state
  or federal courts can practice law, give
  legal advice, and represent a person in
  immigration court.
 Accredited representatives can complete
  applications and represent people in
  immigration court.
 Notaries public, paralegals, accredited
  representatives and immigration
  consultants are not necessarily lawyers.
                                               7
Who cannot practice law?
 It is against the law for an non-attorneys
  to give legal advice.
 A non-attorney can only give non-legal
  help such as:
    ◦ Research
    ◦ Investigating facts
    ◦ Translating your answers to the questions on
      the DACA forms
    ◦ Gathering supporting documents
    ◦ Submitting the forms to CIS

                                                     8
Unauthorized Practice of Law
   “Any person advertising or holding himself
    or herself out as practicing or entitled to
    practice law or otherwise practicing law
    who is not an active member of the State
    Bar, or otherwise authorized pursuant to
    statute or court rule to practice law in this
    state at the time of doing so, is guilty of a
    misdemeanor punishable by up to one year
    in a county jail or by a fine of up to one
    thousand dollars ($1,000), or by both that
    fine and imprisonment.”

                                                    9
Benefits of Consulting an Attorney
 Accurate legal information and analysis;
 Assessment of your overall immigration
  situation and whether you qualify for
  better relief than DACA;
 Ability of attorney to identity “red flags”
  in your case, including:
    ◦ Brief, innocent, and casual departures
    ◦ Criminal convictions, including “significant
      misdemeanors”
    ◦ Gang history

                                                     10
Should I Apply Now?
   There is no application deadline, so it is not
    necessary to file immediately
   Given the lack of an appeal process if you
    are denied, it is better to:
    ◦ Consult an attorney or legal clinic to get
      assistance with your application;
    ◦ Take time to gather all of the necessary
      supporting documents;
    ◦ In some cases, wait to see how CIS handles “red
      flags” in other cases before filing your own case
      with similar “red flags”

                                                          11
•   What is “practicing law” and “legal
    advice?”
•   What is DHS’s deferred action policy?
•   Eligibility criteria
•   How to apply for deferred action
•   Policy concerns




                                            12
Recent developments
 June 15, 2012: Janet Napolitano,
  Secretary of the Department of
  Homeland Security (DHS) released a
  memo granting two-year deferred action
  status to certain young undocumented
  immigrants
 August 14, 2012: U.S. Citizenship and
  Immigration Service (USCIS) released an
  application

                                            13
What is deferred action status?
 A form of administrative immigration
  relief granted by DHS
 Allows noncitizens to remain in the U.S.
  temporarily
 Permits the person to apply for an
  employment authorization document
  (“work permit”)
 A person won’t accrue “unlawful
  presence” while in deferred action status
                                              14
Limits of deferred action
 Does not lead to permanent resident
  status or U.S. citizenship
 Not considered “lawful immigration
  status”
 No benefits to family members
 Can be terminated
 Could lead to a referral to ICE



                                        15
DA
•   What is “practicing law” and “legal
    advice?”
•   What is DHS’s deferred action policy?
•   Eligibility criteria
•   How to apply for deferred action
•   Policy concerns




                                            16
Eligibility criteria: age
 If you have never been in removal
  proceedings, or your proceedings have been
  terminated before your DACA request, you
  must be at least 15 years old at the time of
  filing.
 If you are in removal proceedings, have a
  final removal order, or have a voluntary
  departure order, and are not in immigration
  detention, you can request DACA even if
  you are under the age of 15.
 You cannot be the age of 31 or older as of
  June 15, 2012.
                                                 17
Eligibility criteria: continuous
presence

 Came to the U.S. before age 16
 Lived in the U.S. continuously from June
  15, 2007 to the date of application
    ◦ Brief, innocent, and casual departures are ok




                                                      18
Eligibility criteria: continuous
presence
 Was present in the U.S. on June 15, 2012
 No status on June 15, 2012
    ◦ Entered without inspection or
    ◦ Status expired by that date




                                             19
Eligibility criteria: education or
military service
At least one must be true on the date of
application:
 You are currently in school
 You have a high school diploma
 You have a GED
 You were honorably discharged from the
  U.S. Coast Guard or Armed Forces

                                           20
Eligibility criteria: criminal history
You have not been convicted of any of the
following:
 A felony
 A significant misdemeanor
 Three or more misdemeanors


DHS does not consider you:
 A public safety threat
 A national security threat

                                            21
What offenses qualify as a felony?

 A felony is a federal, state, or local criminal offense
  punishable by imprisonment for a term exceeding
  one year.
 California “wobbler” offenses.
    ◦ Crimes under CA law that can be treated either as a
      felony, punishable by more than one year in state prison, or
      a misdemeanor, punishable by less than one year in county
      jail
   A criminal conviction under a wobbler law in
    California is assumed to be a felony and remains a
    felony unless:
    ◦ you receive a sentence other than a state prison sentence
    ◦ either the prosecutor or the Superior Court judge
      declares your crime a misdemeanor

                                                                  22
What is a significant misdemeanor?
 Federal law definition: maximum term of
  imprisonment one year or less but more
  than five days
 Significant misdemeanor if an offense of:
    ◦   Domestic violence
    ◦   Sexual abuse or exploitation
    ◦   Burglary
    ◦   Firearm offense
    ◦   Drug distribution or trafficking
    ◦   DUI
                                              23
What is a significant misdemeanor?
   Significant misdemeanors also may include
    offenses not listed if:
    ◦ Person sentenced to jail time of more than 90
      days
      Individual must have actually served 90 days in jail –
       suspended sentence not included
      Jail time does not include time spent in custody
       under a ICE detainer
    USCIS will look at the totality of the
     circumstances
                                                                24
Non-significant Misdemeanor
   Misdemeanor defined by federal law
    ◦ Maximum term of imprisonment is 1 year or
      less but more than 5 days
 Misdemeanor not specified as “significant
  misdemeanor,” i.e. domestic violence
  offense, etc.
 Sentenced to time in custody of 90 days
  or less
 Individualized, discretionary
  determination
                                                  25
Examples of non-significant
Misdemeanors
   These are possible non-significant
    misdemeanors:
    ◦   Simple possession of a controlled substance
    ◦   Simple assault
    ◦   Battery
    ◦   Petty theft
    ◦   Disorderly conduct
    ◦   Trespass


                                                      26
These are not considered
misdemeanors
   State immigration law violations
    ◦ Ex: crimes created by Arizona’s SB 1070 and
      Alabama’s HB 56
    ◦ Not considered misdemeanors or felonies
   Minor traffic offenses, such as:
    ◦   Driving without a license
    ◦   Disobeying traffic lights signs or signals
    ◦   Driving uninsured vehicle
    ◦   Driving with an expired or invalid driver license
   Totality of the circumstances test for traffic
    offenses

                                                            27
Expunged Convictions
   Expunged convictions not automatic
    disqualification
    ◦ Expungement is process through which an
      conviction may be “cleaned up” on a person's
      criminal record
 Case accessed on a case-by-case basis
 Particular circumstances may result in a
  favorable exercise of discretion


                                                     28
Juvenile Adjudications
 Juvenile adjudications are not an
  automatic bar
 Juvenile tried as adults will be treated as
  adults
 Cases reviewed on a case-by-case basis
 Particular circumstances may result in a
  favorable exercise of discretion



                                                29
Threat to National Security or
Public Safety
   You are not eligible if DHS finds that you
    are a threat to national security or public
    safety
    ◦ Except if DHS determines there are
      exceptional circumstances
   Indicators of threats include
    ◦ Gang membership
    ◦ Criminal activities
    ◦ Activities that threaten U.S.

                                                  30
DA
•   What is “practicing law” and “legal
    advice?”
•   What is DHS’s deferred action policy?
•   Eligibility criteria
•   How to apply for deferred action
•   Policy concerns




                                            31
How to apply:

 USCIS will begin accepting applications on
  August 15, 2012.
 Visit www.uscis.gov/childhoodarrivals for
  the DACA application form, the work
  permit application form, and instructions.




                                           32
Who do I apply to?
 To USCIS if you have never been in
  removal proceedings
 To USCIS if not in detention and
    ◦ Currently in removal proceedings
    ◦ Subject to final removal order
    ◦ Subject to order of voluntary departure




                                                33
Who do I apply to?
   To ICE if you are in detention
    ◦   ICE Office of Public Advocate (888-351-4024)
    ◦   EROPublicAdvocate@ice.dhs.gov
    ◦   Do not have to be at least 15
    ◦   Can apply before August 15, 2012




                                                       34
Fees
 $380 for work permit application
 $85 for biometrics
 No fee waiver, but you can ask for a fee
  exemption




                                             35
Fee Exemption
   Timing: must submit request, get approval
    for exemption before filing deferred
    action request

   Submit: letter and supporting
    documentation

   Conditions: must meet at least one
    condition
                                                36
Fee Exemption Conditions
 Income < 150% poverty guidelines and
1. Under 18, homeless, in foster care or no
  other parental support
2. Can’t care for self b/c of serious chronic
  disability, or
3. Have > $25K in medical expenses for self
  or immediate family in past year



                                            37
How to prepare to apply:
 Gather documents to prove your
  eligibility
 Do a background check on your criminal
  history
 Attend a community forum, workshop, or
  webinar




                                           38
Documentary proof required for
 current school enrollment
 graduation from or completion of high
  school
 obtaining GED
 honorably discharged from Coast Guard or
  Armed Forces
 physical presence on June 15, 2012
 residence in U.S. before turning 16
 age on June 15, 2012
 criminal history

                                             39
To prove your identity and age
   Valid or Expired Passports
   Birth Certificate accompanied by photo
    identification
   Valid consular IDs or national identity
    document
   Previous Photo ID documents issued by the
    U.S. government
   Any school IDs with photo
   Any other official photo ID (for example, a
    Veteran’s ID or other forms of ID from
    home country)

                                                  40
To prove entry under the age of 16
Collect any documents that can prove the date you
entered the United States. These include:
 Valid or Expired Passports with entry stamps
 School Records
 Travel records
 Immunization Cards
 Hospital and Medical Records
 Religious Records
 Financial Records
 Lease Agreements


                                                    41
To prove presence on 6/15/12
   School Records
   Immunization Cards
   Hospital and Medical Records
   Financial Records
   Lease Agreements/rent receipts
   Religious records
   Employment Records
    ◦ But don’t submit anything with a false name or
      false SSN
   Utility Bills
                                                       42
To prove continuous residence in the
U.S.
 School Records
 Immunization Cards
 Hospital and Medical Records
 Financial Records
 Lease Agreements/rent receipts
 Religious records
 Employment Records
    ◦ But don’t submit anything with a false name or
      false SSN
   Utility Bills
                                                       43
Continuous residence
   If you departed the U.S. between June 15,
    2007 and August 15, 2012, submit proof
    that the departure was brief, casual, and
    innocent
    ◦   Plane/bus/train tickets
    ◦   Passport entries
    ◦   Hotel receipts
    ◦   Evidence of the purpose of your travel
    ◦   Any other relevant evidence

                                                 44
School/Military
 Copy of High School Diploma
 Copy of school transcripts to show
  current enrollment
 Copy of G.E.D. certificate
 Report Cards
 Military Records




                                       45
Affidavits
   If you don’t have documentary proof, you
    can submit affidavits for:
  ◦ gaps in five years of continuous residency
  ◦ departures during that period that were brief,
    casual, and innocent
• Minimum of two affidavits from persons other
  than applicant who have personal knowledge of
  events and circumstances



                                                 46
Circumstantial Evidence
   Will be accepted to prove:
    ◦ gaps in the five years of continuous residency
    ◦ any departures during that period were brief,
      casual, and innocent
    ◦ physical presence on June 15, 2012
    ◦ residence in U.S. before turning 16
• Example: documentary evidence that you
  were in the U.S. shortly before/after June
  15, 2012

                                                       47
FBI Background Check
 The instructions to complete and submit the form
  can be found at http://www.fbi.gov/about-
  us/cjis/background-checks/submitting-an-
  identification-record-request-to-the-fbi
 Send the following items to the address listed below:
    ◦ Signed applicant information form
    ◦ Fingerprint card
    ◦ Payment of $18 U.S. dollars
• FBI CJIS Division – Record Request
  1000 Custer Hollow Road
  Clarksburg, WV 26306
 The fingerprint card can be found at
  http://www.fbi.gov/about-us/cjis/background-
  checks/standard-fingerprint-form-fd-258

                                                          48
CA Live Scan Check
   If you have only lived in California and are
    sure you have not had any arrests or contact
    with law enforcement in any state other than
    California:
    ◦ You can complete a “live scan” (electronic
      fingerprinting)
    ◦ Visit http://oag.ca.gov/fingerprints to find
      locations and information about the process
   We suggest not going to a police or sheriff
    department to obtain your live scan
                                                     49
Obtaining Court Records
 Go to the court where you received your
  conviction to obtain a certified copy of
  the court record.
 There may be fees for getting these
  copies.




                                         50
Application Process
1. Mail the following to a CIS lockbox:
 ◦ DACA form (I-821D)
 ◦ Work permit form (I-765)
      Two passport photos
 ◦ Work permit worksheet (I-765WS)
 ◦ Fees ($465 total)
 ◦ Supporting documents

 * Complete form G-1145 if you want email or text
 notification that your request has been received
                                                    51
Application Process, Cont’d
2. USCIS will send a notice of application once
the application is complete and all materials
have been received.
3. CIS will send you an appointment notice to
take your biometrics at an Application Support
Center.
   You can reschedule if necessary.
   Failure to show up at ASC will delay process and/or result in a
    denial of DACA.
3. CIS may issue Requests for Evidence if
documents are missing
4. Interviews are rarely conducted

                                                                      52
If DACA is Denied:
 No appeals process
 No motions to reopen
 No motions to reconsider
 Case reviewed only for limited technical
  reasons




                                             53
If DACA is Denied
   Your case will be referred to ICE if your
    case involves:
    ◦   Fraud
    ◦   Criminal offense,
    ◦   Threat to national security or public safety
    ◦   Other exceptional circumstances




                                                       54
If DACA is Granted:
 You can apply for a Social Security
  Number
 Check your state’s rules about eligibility
  for driver’s licenses
 Check your state’s rules about eligibility
  for in-state college tuition




                                               55
Travel abroad
   You can apply for advance parole after you are
    granted deferred action

   Reasons for travel:
    ◦ Humanitarian
    ◦ Education
    ◦ Employment

   Consequences: should not be considered a
    departure

   Warning:You are not guaranteed admission back
    to the U.S. Check with an attorney before leaving!
                                                     56
Red flags
 Beware of notarios or others who claim
  they can get you a green card or
  guarantee you approval
 Talk to an experienced immigration
  attorney before applying if you have ever:
    ◦ Been arrested
    ◦ Left the country
    ◦ Been in contact with ICE


                                               57
DA
•   What is “practicing law” and “legal
    advice?”
•   What is DHS’s deferred action policy?
•   Eligibility criteria
•   How to apply for deferred action
•   Policy concerns




                                            58
Policy concerns


   What is a threat to
    national security or
    public safety?
    ◦ gang databases, juvenile
      adjudications




                                 59
Policy concerns
   Confidentiality
    ◦ Info used for non-enforcement purposes
    ◦ Info used for enforcement purposes
    ◦ Family members’ info




                                               60
RESOURCES




            61
 www.weownthedream.org
 National Immigration Law Center
    ◦ Deferred action for DREAMers:
      http://nilc.org/dreamdeferred.html
   United We Dream
    ◦ Deferred action FAQ:
      http://unitedwedream.org/resources/deferred-
      action-faq/


                                                 62
Contact Info

Josh Stehlik                      Lori B. Schoenberg
National Immigration Law Center   Attorney at Law
Los Angeles, CA                   Los Angeles, CA
(213) 674-2817                    (213) 622-2565
stehlik@nilc.org                  lori.schoenberg.esq@
www.nilc.org                      gmail.com




                                                     63

				
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